PONTIAC, Mich. -- Murder charges against Dr. Jack Kevorkian were dismissed yesterday by a Michigan judge, who then indicated that if asked, he would order the doctor to be tried instead on charges of assisted suicide in a 1991 case involving the deaths of two women.
"There is no proof of the necessary elements for a murder charge," said the judge, David F. Breck of the Oakland County Circuit Court. He had dismissed the same charge against Dr. Kevorkian in February 1992, but a second ruling was forced by the Michigan Supreme Court's decision in December that a murder charge can be brought against someone who assists in a suicide if there is reason to believe that death was the "direct result of the defendant's act."
Dr. Kevorkian, who did not attend yesterday's hearing, had been charged with murdering Marjorie Wantz, 58, of Sodus, Mich., who said she suffered from severe vaginal pain, and Sherry Miller, 43, of Roseville, Mich., who had multiple sclerosis. Both died in a rented cabin in a state park on Oct. 23, 1991.
Mrs. Wantz used a device that injected lethal drugs; Mrs. Miller inhaled carbon monoxide after Dr. Kevorkian was unable to find a vein to insert a needle for the device.
Their deaths were the second and third among 25 that Dr. Kevorkian, a 67-year-old retired pathologist, has attended since 1990.
Gregory J. Townsend, the assistant prosecutor in charge of the case, argued yesterday that the case had all the elements needed to justify a murder charge because "the defendant actively participated in the final overt act that caused the deaths" by placing the needle in Mrs. Wantz's arm and putting a mask over Mrs. Miller's face.
But Judge Breck said it was clear from the transcript of the preliminary hearing that Mrs. Wantz herself had flipped a lever that sent a deadly solution into her veins, and that Mrs. Miller had pulled a screwdriver that allowed the gas to flow into her lungs.
Geoffrey Fieger, the chief lawyer for Dr. Kevorkian, argued that even an assisted suicide charge was an inappropriate "ex post facto application of the law" because Michigan had no assisted suicide law when the women died. Dr. Kevorkian has never denied his role in the deaths.
But the judge noted that the Michigan Supreme Court had also ruled that assisted suicide always had been illegal under unwritten "common law," and that even without a specific statute it could be prosecuted as a felony carrying a maximum sentence of five years in prison.
Judge Breck said that "while I am concerned about the lack of notice of what is now deemed to be a criminal act," he had no choice "but to rule that Dr. Kevorkian must stand trial for the common-law crime of assisted suicide."
Mr. Fieger then exclaimed, "Your honor, my client hasn't even been charged with that crime!"
The judge looked startled and said, "I guess I put the cart before the horse." He then indicated that he would order a trial once prosecutors filed amended material.
Prosecutors have the option of appealing the dismissal of the murder charges, but they have said they fear that winning a murder convictionagainst Dr. Kevorkian would be very difficult. Opinion polls show that a large majority of people in Michigan approve of his efforts to assist in the deaths of grievously ill people.
Only once, in 1994, has Dr. Kevorkian stood trial for assisting in a suicide, and a jury acquitted him even though he admitted helping Thomas W. Hyde Jr., a 30-year-old landscaper from Oakland County suffering from Lou Gehrig's disease, to take his own life.